State v Ruffin, (02-1651) 10/07/2003

Appeal by defendant from judgment entered 31 July 2002 by Judge Cy A. Grant, Sr. in Bertie County Superior Court. Heard in the Court of Appeals 25 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General Dennis P. Myers, for the State.

Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for defendant-appellant.

GEER, Judge.

    Defendant Kelvin Ruffin contends on this appeal from his conviction for robbery with a dangerous weapon that the trial court should have granted his motion to dismiss because the evidence failed to identify him as one of the robbers. Because we find that the evidence did specifically identify defendant, we find no error.
    The State's evidence tended to show that on 3 July 2001, Keshunna Watson attended a baby shower thrown for her by her family. Ms. Watson received gifts, including approximately $400.00 in cash. After the baby shower, Ms. Watson picked up her boyfriend, Christopher Swain, from his cousin's house. Ms. Watson handed Swain the money she received from the shower forsafekeeping. The two then drove back to Ms. Watson's home a little after 11:00 p.m.
    Upon arriving at the house, Ms. Watson went inside to put the baby to bed and Mr. Swain unloaded the gifts from the car. While Mr. Swain was unloading the gifts, a car sped up to the house and two men with sawed-off shotguns jumped out of the car. They had their faces covered with bandanas from the top of their lips down. One man put a gun to Mr. Swain's head and demanded, "give it up." Mr. Swain took the money out of his pocket and threw it on the ground. The man who had held the gun to Mr. Swain's head picked up the money. At this point, Ms. Watson came to the door of the house and yelled, "Kelvin, what you doing?" The robbers jumped back in the car and sped away. Mr. Swain did not recognize the man with the gun.
    Defendant was convicted of robbery with a dangerous weapon and sentenced to 117 to 150 months imprisonment. Defendant appeals.
    Defendant's sole argument is that the trial court erred by denying his motion to dismiss at the end of the evidence. A trial court may properly deny a motion for dismissal when the State has presented substantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). Our Supreme Court hasstated that:
        In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.

State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (citations omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
     Specifically, defendant states that the State's witness, Ms. Watson, never identified him as being the robber. The transcript indicates otherwise. At the beginning of Ms. Watson's testimony, the prosecutor asked her, "Do you know the defendant Mr. Kelvin Ruffin?" She responded: "Yes, I do. . . . He's my first cousin[.]" While defendant acknowledges that Ms. Watson then testified repeatedly that "Kelvin Ruffin" committed the robbery, he claims that she never clarified whether "Kelvin Ruffin" the robber was the same person as "Kelvin Ruffin" her cousin and the defendant.
    Even if the testimony could be considered ambiguous, the link was unambiguously made when the State read into evidence, without objection, Ms. Watson's written statement:
            And she heard a car drive up in a hurry, at a fast pace. Stated that Chris was getting the gifts out of the car when the suspect's car, which was a medium-blue four-door Ford Escort, pulled up beside Chris. Stated to me that her first cousin Kelvin Ruffin got out of the driver's side back seat with a medium-length shotgun or rifle and pointed it towards Chris.

Ms. Watson's testimony, especially when combined with this statement, provides substantial evidence that defendant was one of the perpetrators of the robbery. Thus, we conclude the trial court did not err by denying defendant's motion to dismiss.

    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***